Following several weeks of tense discussions between Congress and the Administration, on June 1 the Department of Homeland Security (DHS) published a final rule in the Federal Register authorizing issuance of 15,000 additional H-2B visas for the remainder of Fiscal Year (FY) 2018. As reported this spring, Congress authorized the Department of Homeland Security (DHS) to raise its cap on H-2B temporary worker visas from the current cap of 66,000 to 129,500 visas for FY2018 within the context of the omnibus appropriations law passed in late March. DHS states that by issuing 15,000 extra H-2B visas – significantly below the additional 63,500 authorized by the FY2018 omnibus – the agency will prioritize employers who demonstrate that they would suffer “irreparable harm” to their business unless they are able to hire additional seasonal workers during the summer and fall 2018 seasons. DHS further states that it seeks to avoid possible abuse of the H-2B program by limiting the pool of extra visas to 15,000.
According to the rule, DHS punts the broader temporary worker shortage issue to Congress, urging lawmakers to reform the Immigration and Nationality Act, which establishes the H-2B visa program. During the course of the extended back-and-forth discussions between the legislative and executive branches this spring, DHS claims that only congressional action can provide long-term certainty with respect to the issuance of more guest worker visas. According to federal regulators, addressing worker shortages through the annual appropriations process fails to create certainty, undercutting the ability of the business community to plan long-term.
Since moving forward with a limited cap increase, DHS’s United States Citizenship and Immigration Service (USCIS) has outlined some practical considerations for filing an H-2B petition per the new regulation:
- An employer “must meet all existing H-2B eligibility requirements,” which includes receipt of “an approved temporary labor certification (TLC) from the Department of Labor (DOL) that is valid for the entire employment period stated on the petition.” DHS reminds employers that “the employment start date on the petition must match the employment start date on the TLC, even if that date has passed.”
- Employers must also “conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018.”
- And finally, a business must “submit an attestation on Form ETA 9142-B-CAA-2 (PDF)in which the petitioner affirms, under penalty of perjury, its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year.” The agency provides Form ETA 9142-B-CAA-2 Instructions (PDF) to properly complete the attestation.
- DHS further states that it “will not accept” an “expired ETA 9142-B-CAA from fiscal year 2017.” The agency will reject any “petition that does not include the new ETA 9142-B-CAA-2 attestation form for fiscal year 2018.”
Recognizing the time constraints associated with the application process, DHS states that it will “adjudicate” applications within 15 calendar days for employers opting for “premium processing,” and 30 days for standard applications. To learn more about how to fast-track an H-2B visa application, please click on the following link: https://www.uscis.gov/forms/how-do-i-use-premium-processing-service. The unprecedented demand for guest worker visas this year will create a narrow time frame in which to submit an application.
As details unfold related to practical considerations associated with the new rule, AHC will continue to inform members about developments and helpful anecdotes for members who are considering moving forward with summer applications.
As a reminder, AHC will be conducting a panel discussion featuring congressional and industry experts on Tuesday, June 12, in Washington, D.C., as part of the association’s annual meeting. To view a copy of the final rule, click here: https://www.gpo.gov/fdsys/pkg/FR-2018-05-31/pdf/2018-11732.pdf. To learn more about guest worker visas and broader immigration policy developments, please contact AHC’s Bryan Brendle at firstname.lastname@example.org or 202-296-4031.